The Court dismissed the writ petition regarding unpaid bills by labour contractors against BSNL, holding that the dispute was governed by an arbitration clause and/or involved disputed questions of fact not suitable for writ jurisdiction.
The writ petition is dismissed with a direction to approach the appropriate forum for arbitration.
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12.04.2021. Item no. 50. Court No.13 ap
W.P.A. No. 3048 of 2021 (Through Video Conference)
M/s. Debasish Nag & Anr. Versus
The Union of India & Ors.
Mr. Debabrata Roy,
Mr. Kushal Chatterjee.
…For the petitioners.
Mr. Dipak Kumar Mukherjee, Mr. Rajib Mukherjee, Ms. Shreyasi Bhaduri, Mr. Subhrojit Saha.
…For the respondent BSNL.
The writ petitioners are aggrieved by an order dated 5th December, 2020 issued by the Divisional Engineer, Cossipore/ID & OD, BSNL, Calcutta Telephones. The writ petitioner no.1 was admittedly a labour contractor engaged by the BSNL. The petitioners are aggrieved by non-receipt of payment from July, 2019 to June, 2020.
Admittedly, the tender conditions provide for Clause 19 of the Agreement, which is set out hereunder:
“19. In case of any dispute or differences, breach and violation relating to the terms of the agreement, the said dispute or difference shall be referred to the sole Arbitration of Chief General Manager, CTD, BSNL or any person appointed by him. That the award of the Arbitrator shall be final and binding on both the parties. In the event of such arbitrator to whom the matter is originally
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referred to, vacates his office on resignation or otherwise or refuses to do works or neglecting his work being unable to act as Arbitrator for any reason whatsoever, the Chief General Manager, CTD, BSNL shall appoint another person to act as Arbitrator in the place of outgoing Arbitrator and the person so appointed shall be entitled to proceed further with the reference from the stage at which it was left by the predecessor. The Contractor will have no objection in any such appointment that the Arbitrator so appointed is an employee of BSNL. The adjudication of such Arbitrator shall be governed by the provision of the Arbitration & Conciliation Act, 1996 or any statutory modification or reenactment thereof or any rules made thereof.”
The petitioners’ case and claim would normally have been governed by such Clause.
Counsel for the petitioners would argue that the claims made by the petitioners have not been disputed. It is just that certain clarifications and further documents have been sought by the BSNL to address the petitioners’ claims.
This Court finds from the impugned order at Clause 1 states as follows:
“ Attendance certificate supplied along with bills are not (SIC) accordance with actual attendance .”
The above sentence in no uncertain terms indicates that BSNL is not satisfied with the claims of the petitioners that its employees worked on a number of days claimed.
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There is no clear denial or refusal of any claims made by the petitioners. The cause of action, if at all, on the petitioners could also be premature.
Counsel for the petitioners would argue that the Arbitration Clause does not cover acts or omissions of the parties post the issuance of work order and purpose of work.
This Court is reminded of a decision of the Hon’ble Supreme Court of India in the case of Dresser Rand S. A. Vs. Bindal Agro Chemical Ltd. reported in (2006) 1 SCC 751 as applied in the decision of a Division Bench of this Court, of which I was a party, in MD, West Bengal Poultry Development Corporation Vs. Jayanti Bose & Ors. reported in 2018 SCC Online Cal 1357.
It is prima facie clear that the Arbitration Clause in a tender condition essentially governs the cases and claims of the nature raised by the petitioners.
In any event, assuming for the sake of argument that the Arbitration Clause does not govern the instant claim, there are disputed question of facts noticed by this Court which cannot be gone into by a Writ Court under Article 226 of the Constitution of India.
Hence, the instant writ petition must fail and is hereby dismissed.
It is made clear that this Court has not entered into the merits or propriety of the claims made by the
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petitioners and the same may be agitated by the petitioners in accordance with law before the appropriate forum.
Since respondents have not used any affidavit-inopposition, the allegations in the writ application shall not be deemed to have been admitted.
There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
( Rajasekhar Mantha , J.)
2 issues framed by the court
Whether a dispute regarding non-payment of bills by a labour contractor to BSNL is maintainable as a writ petition under Article 226 given the existence of an arbitration clause in the tender.
Whether the High Court can adjudicate questions of fact arising from the assessment of attendance certificates and work claims in a work order dispute.
Colour shows how this judgement treated each authority
Dresser Rand S. A. Vs. Bindal Agro Chemical Ltd.Referred¶23
(2006) 1 SCC 751 · Who else cites this
MD, West Bengal Poultry Development Corporation Vs. Jayanti Bose & Ors.Applied¶23
2018 SCC Online Cal 1357 · Who else cites this
2 provisions across 2 enactments
M/s. Debasish Nag & Anr.
The Union of India & Ors.
Rajasekhar Mantha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
